[Federal Register Volume 84, Number 204 (Tuesday, October 22, 2019)]
[Proposed Rules]
[Pages 56397-56401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22877]



28 CFR Part 28

[Docket Number OAG-164; AG Order No. 4537-2019]
RIN 1105-AB56

DNA-Sample Collection From Immigration Detainees

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Proposed rule.


SUMMARY: The Department of Justice is proposing to amend regulations 
that require DNA-sample collection from individuals who are arrested, 
facing charges, or convicted, and from non-United States persons who 
are detained under the authority of the United States. The amendment 
would strike a provision authorizing the Secretary of Homeland Security 
to exempt from the sample-collection requirement certain aliens from 
whom collection of DNA samples is not feasible because of operational 
exigencies or resource limitations. This will restore the Attorney 
General's plenary legal authority to authorize and direct all relevant 
Federal agencies, including the Department of Homeland Security, to 
collect DNA samples from individuals who are arrested, facing charges, 
or convicted, and from non-United States persons who are detained under 
the authority of the United States.

DATES: Written and electronic comments must be sent or submitted on or 
before November 12, 2019. Comments received by mail will be considered 
timely if they are postmarked on or before the last day of the comment 
period. The electronic Federal Docket Management System will accept 
electronic comments until Midnight Eastern Time at the end of that day.

ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office 
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW, 
Room 4234, Washington, DC 20530. To ensure proper handling, please 
reference Docket No. OAG-164 on your correspondence. You may submit 
comments electronically or view an electronic version of this proposed 
rule at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 

[[Page 56398]]

Legal Policy, United States Department of Justice, Washington, DC, 202-

SUPPLEMENTARY INFORMATION: Posting of Public Comments. Please note that 
all comments received are considered part of the public record and made 
available for public inspection online at http://www.regulations.gov. 
Such information includes personal identifying information (such as 
your name, address, etc.) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you still want to 
submit personal identifying information (such as your name, address, 
etc.) as part of your comment, but do not want it to be posted online, 
you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the 
first paragraph of your comment. You also must locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.

Background and Purpose

    This proposed rule removes 28 CFR 28.12(b)(4), a provision that 
authorizes the Secretary of Homeland Security to exempt certain 
detained aliens from DNA-sample collection.
    The DNA Fingerprint Act of 2005, title X of Public Law 109-162, 
authorizes the Attorney General to collect DNA samples from individuals 
who are arrested, facing charges, or convicted, and from non-United 
States persons who are detained under the authority of the United 
States. See 34 U.S.C. 40702(a)(1)(A). The statute further authorizes 
the Attorney General to delegate the function of collecting DNA samples 
to other agencies, and to direct their discharge of this function, 
thereby empowering the Attorney General to establish and administer a 
government-wide sample-collection program for persons in the covered 
classes. See id. In 2008, the Attorney General issued an implementing 
rule for 34 U.S.C. 40702(a)(1)(A) that amended 28 CFR 28.12. See 73 FR 
74932 (Dec. 10, 2008).
    The rule generally requires DNA-sample collection from individuals 
in these categories if they are fingerprinted. Consequently, Federal 
agencies now collect DNA samples from persons they take into custody as 
a regular identification measure in booking, on a par with 
fingerprinting and photographing. The rule requires DNA-sample 
collection both for persons arrested on Federal criminal charges and 
for non-United States persons in detention for immigration violations 
because DNA identification serves similar purposes and is of similar 
value in both contexts. See 28 CFR 28.12(b) (``Any agency of the United 
States that arrests or detains individuals . . . shall collect DNA 
samples from individuals who are arrested, facing charges, or 
convicted, and from non-United States persons who are detained under 
the authority of the United States.''); 73 FR at 74933-34, 74938-39. 
The rule defines ``non-United States persons'' for this purpose to mean 
persons who are not U.S. citizens and who are not lawfully admitted for 
permanent residence as defined in the relevant regulation (8 CFR 
1.1(p), which has since been redesignated 8 CFR 1.2). 28 CFR 28.12(b).
    The rule allows exceptions to the sample-collection requirement 
with the approval of the Attorney General. 28 CFR 28.12(b) (third 
sentence); 73 FR at 74934. As currently formulated, the rule also 
recognizes specific exceptions with respect to four categories of 
aliens, as provided in paragraphs (1)-(4) of 28 CFR 28.12(b).
    The first exception, appearing in Sec.  28.12(b)(1), is for aliens 
lawfully in, or being processed for lawful admission to, the United 
States. This reflects that the rule's objectives in relation to non-
U.S. persons generally concern those implicated in illegal activity 
(including immigration violations) and not lawful visitors from other 
countries. See 73 FR at 74941.
    The second exception, appearing in Sec.  28.12(b)(2), is for aliens 
held at a port of entry during consideration of admissibility and not 
subject to further detention or proceedings. The second exception 
overlaps with the first and its rationale is similar. Lawful entrants 
from other countries may be regarded as detained when, for example, 
they are briefly held up at airports during routine processing or taken 
aside for secondary inspection. As with the first exception, when such 
entrants are not subject to further detention or proceedings, 
categorically requiring DNA-sample collection is not necessary to 
realize the rule's objectives.
    The third exception, appearing in Sec.  28.12(b)(3), is for aliens 
held in connection with maritime interdiction, because collecting DNA 
samples in maritime interdiction situations may be unnecessary and 
practically difficult or impossible.
    This proposed rule does not affect these three exceptions because 
the considerations supporting them have not changed since the issuance 
of the original rule in 2008.
    The fourth exception, appearing in Sec.  28.12(b)(4), is for other 
aliens, with respect to whom the Secretary of Homeland Security, in 
consultation with the Attorney General, determines that the collection 
of DNA samples is not feasible because of operational exigencies or 
resource limitations. This aspect of the current regulation is at odds 
with the treatment of all other Federal agencies, which may adopt 
exceptions to DNA-sample collection based on operational exigencies or 
resource limitations only with the Attorney General's approval. See 28 
CFR 28.12(b). Nevertheless, the rule granted the Secretary of Homeland 
Security authority to make exceptions for certain aliens, recognizing 
that it might not be feasible to implement the general policy of DNA-
sample collection immediately in relation to the whole class of 
immigration detainees, including the hundreds of thousands of illegal 
entrants who are taken into custody near the southwest border of the 
United States each year.
    Then-Secretary of Homeland Security Janet A. Napolitano advised in 
a March 22, 2010, letter to then-Attorney General Eric H. Holder, Jr., 
that categorical DNA collection from aliens in this class was not 
feasible, on the grounds described in Sec.  28.12(b)(4). However, 
subsequent developments have resulted in fundamental changes in the 
cost and ease of DNA-sample collection. DNA-sample collection from 
persons taken into or held in custody is no longer a novelty. Rather, 
pursuant to the mandate of Sec.  28.12(b), it is now carried out as a 
routine booking measure, parallel to fingerprinting, by Federal 
agencies on a government-wide basis.

[[Page 56399]]

The established DNA-collection procedures applied to persons arrested 
or held on criminal charges can likewise be applied to persons 
apprehended for immigration violations.
    Accordingly, this proposed rule removes the exemption authority of 
the Secretary of Homeland Security appearing in paragraph (b)(4) of 
Sec.  28.12. The removal of that exemption authority will not preclude 
limitations and exceptions to the regulation's requirement to collect 
DNA samples, because of operational exigencies, resource limitations, 
or other grounds. But all such limitations and exceptions, beyond those 
appearing expressly in the regulation's remaining provisions, will 
require the approval of the Attorney General.
    The Attorney General--exercising his plenary authority under the 
DNA Fingerprint Act of 2005 to authorize and direct DNA-sample 
collection by Federal agencies, and to permit limitations and 
exceptions thereto--will review DHS's capacity to implement DNA-sample 
collection from non-U.S. person detainees as required by the 
regulation. The Department of Justice will work with DHS to develop and 
implement a plan for DHS to phase in that collection over a reasonable 
    The situation parallels that presented by the initial 
implementation of DNA-sample collection by other Federal agencies 
pursuant to 28 CFR 28.12. The regulatory requirements were not 
understood or applied to impose impossible obligations on the agencies 
to immediately collect DNA samples from all persons in their custody 
covered by the rule. Rather, the Department of Justice worked with the 
various agencies to implement the regulation's requirements in their 
operations without unnecessary delay, but in a manner consistent with 
the need to adjust policies and procedures, train personnel, establish 
necessary relationships with the Federal Bureau of Investigation 
Laboratory regarding DNA-sample collection and analysis, and take other 
measures required for implementation.
    Many considerations support the decision to repeal the Sec.  
28.12(b)(4) exception. As an initial observation, the original 
rulemaking recognized that distinguishing the treatment of criminal 
arrestees and immigration detainees with respect to DNA identification 
is largely artificial, in that most immigration detainees are held on 
the basis of conduct that is itself criminal. Aliens who are 
apprehended following illegal entry have likely committed crimes under 
the immigration laws, such as 8 U.S.C. 1325(a) and 1326, for which they 
can be prosecuted. ``Hence, whether an alien in such circumstances is 
regarded as an arrestee or a (non-arrested) detainee may be a matter of 
characterization, and the aptness of one description or the other may 
shift over time, depending on the disposition or decision of 
prosecutors concerning the handling of the case.'' 73 FR at 74939. The 
practical difference between criminal arrestees and immigration 
detainees, for purposes of DNA-sample collection, has been further 
eroded through policies favoring increased prosecution for immigration 
    The underlying legal and policy considerations support consistent 
DNA identification of individuals in the two classes. At the broadest 
level, ``[t]he advent of DNA technology is one of the most significant 
scientific advancements of our era,'' having an ``unparalleled ability 
both to exonerate the wrongly convicted and to identify the guilty.'' 
Maryland v. King, 569 U.S. 435, 442 (2013) (quotation marks omitted). 
DNA analysis ``provides a powerful tool for human identification,'' 
which ``help[s] to bring the guilty to justice and protect the 
innocent, who might otherwise be wrongly suspected or accused.'' 73 FR 
at 74933. ``[T]hrough DNA matching,'' it enables ``a vast class of 
crimes [to] be solved.'' 73 FR at 74934. The need for consistent 
application of DNA identification measures may be particularly 
compelling ``in relation to aliens who are illegally present in the 
United States and detained pending removal,'' because ``prompt DNA-
sample collection could be essential to the detection and solution of 
crimes they may have committed or may commit in the United States . . . 
before the individual's removal from the United States places him or 
her beyond the ready reach of the United States justice system.'' 73 FR 
at 74934.
    Regardless of whether individuals are deemed criminal arrestees or 
immigration detainees, the use of collected DNA samples is the same and 
has similar value. The DNA profiles the government derives from 
arrestee or detainee samples amount to sanitized ``genetic 
fingerprints''--they can be used to identify an individual uniquely, 
but they do not disclose the individual's traits, disorders, or 
dispositions. The profiles are searched against the Combined DNA Index 
System (CODIS), which includes DNA profiles derived from biological 
residues left at crime scenes--for example, the DNA of a rapist secured 
in a sexual assault examination kit, or the DNA of a murderer found on 
an item he left or touched in committing the crime. A match to CODIS 
identifies the arrestee or detainee as the source of the crime-scene 
DNA and likely perpetrator of the offense. Equally for criminal 
arrestees and immigration detainees, the operation of the DNA 
identification system thereby furthers the interests of justice and 
public safety without compromising the interest in genetic privacy. See 
King, 569 U.S. at 442-46, 461-65; 73 FR at 74933, 74937-38.
    For criminal arrestees and immigration detainees, the specific 
governmental interests supporting the use of the DNA technology are 
implicated in similar, if not identical, ways. One such interest is 
simply that of identification--``the need for law enforcement officers 
in a safe and accurate way to process and identify the persons . . . 
they must take into custody,'' King, 569 U.S. at 449, which includes 
connecting the person ``with his or her public persona, as reflected in 
records of his or her actions,'' id. at 451. DNA is a ``metric of 
identification'' used to connect the individual to his ``CODIS profile 
in outstanding cases,'' which is functionally no different from the 
corresponding use of fingerprints, except for ``the unparalleled 
accuracy DNA provides.'' King, 569 U.S. at 451-52; see 73 FR at 74933-
34, 74936-37.
    A second governmental interest is the responsibility ``law 
enforcement officers bear . . . for ensuring that the custody of an 
arrestee does not create inordinate risks for facility staff, for the 
existing detainee population, and for a new detainee.'' King, 569 U.S. 
at 452 (quotation marks and citation omitted); see 73 FR at 74934 
(noting use of DNA information in ensuring proper security measures for 
detainees). For example, a match between the DNA profile of a person in 
custody and DNA left by the apparent perpetrator at the site of a 
murder is important information that officers and agencies responsible 
for the person's custody should have, a consideration that applies 
equally whether the detention is premised on a criminal law violation 
or an immigration law violation.
    Third, DNA identification informs the decision concerning continued 
detention or release, in the interest of ensuring that the individual 
will appear for future proceedings. In the criminal context this 
includes ensuring that an arrestee will appear for trial if released, 
and in the immigration context it includes ensuring that a detainee 
will appear for future proceedings relating to his immigration status 
if released. If DNA matching has shown or will show a connection 
between the person in custody and a crime for which he may be held to 
account if he has further

[[Page 56400]]

contact with the justice system, the person's incentive to flee must be 
considered in deciding whether to continue the detention pending 
further proceedings. See King, 569 U.S. at 452-53 (``A person who . . . 
knows he has yet to answer for some past crime may be more inclined to 
    Fourth, DNA identification informs the decision concerning 
continued detention or release, and necessary conditions if release is 
granted, in the interest of public safety. See King, 569 U.S. at 453 
(``an arrestee's past conduct is essential to an assessment of the 
danger he poses to the public, and this will inform a . . . 
determination whether the individual should be released''); 73 FR at 
74934 (DNA information ``helps authorities to assess whether an 
individual may be released safely to the public . . . and to establish 
appropriate conditions for his release''). The results of DNA 
identification have the same significance for this purpose whether the 
person has been detained for criminal or immigration law reasons.
    Fifth, DNA identification furthers the fundamental objectives of 
the criminal justice system, clearing innocent persons who might 
otherwise be wrongly suspected or accused by identifying the actual 
perpetrator, and helping to bring the guilty to justice. See King, 569 
U.S. at 455-56; 73 FR at 74933-34. Here, too, it makes no difference 
whether the basis of the detention is suspected criminality or an 
immigration violation.
    In this connection, consider the case of Raphael Resendez-Ramirez, 
the ``Railway Killer,'' who was executed in Texas in 2006. Resendez is 
believed to have committed numerous murders in the United States, 
including at least seven in the 1997-99 period, as well as additional 
murders in Mexico. Resendez was repeatedly taken into custody and 
repatriated to Mexico, including eight times between January 5, 1998 
and June 1, 1999, and on earlier occasions going back to the 1970s. See 
U.S. Department of Justice, Office of the Inspector General, Special 
Report on the Raphael Resendez-Ramirez Case (March 20, 2000), https://oig.justice.gov/special/0003.
    Suppose it had been possible on any occasion when Resendez was 
apprehended to take a DNA sample from him and match it to DNA evidence 
derived from any of his murders. The officers responsible for his 
custody would have been put on notice of his dangerousness upon receipt 
of the information, and he would have been held in custody for criminal 
proceedings rather than being released, thereby saving the lives of the 
victims he claimed thereafter.
    This proposed rule's removal of the authorized exception to DNA 
collection for certain detained aliens appearing in 28 CFR 28.12(b)(4) 
will help to ensure that future avoidable tragedies of this nature will 
in fact be avoided, and that DNA technology will be consistently 
utilized to further public safety and the interests of justice in 
relation to immigration detainees, as has long been the case in 
relation to criminal arrestees, defendants, and convicts in the Federal 
    In addition to removing Sec.  28.12(b)(4), the proposed rule 
updates a citation in Sec.  28.12(b), replacing ``8 CFR 1.1(p)'' with 
``8 CFR 1.2.''

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation would not have a significant economic 
impact on a substantial number of small entities because it concerns 
Federal agencies' collection of DNA samples from certain aliens.

Executive Orders 12866, 13563, and 13771--Regulatory Planning and 

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and Executive Order 13563, ``Improving 
Regulation and Regulatory Review.'' The Department of Justice has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f).
    This rule strikes paragraph (b)(4) of 28 CFR 28.12, which 
authorizes the Secretary of Homeland Security to exempt certain aliens 
from DNA-sample collection based on operational exigencies or resource 
limitations. Following the proposed change, the decision regarding 
limitations and exceptions to DNA-sample collection from persons in the 
affected class will be fully vested in the Attorney General.
    This proposed rulemaking is not subject to the requirements of 
Executive Order 13771 because any future costs of DNA-sample collection 
following this change in decision-making authority will be the same as 
the costs of DNA-sample collection pursuant to the existing regulation, 
subject to whatever limitations or exceptions the decision-maker 
chooses to allow. In other words, while future implementation decisions 
under 28 CFR 28.12 to collect DNA more broadly may entail costs, these 
costs could equally be realized under the current text of the 
regulation and do not result from this proposed rulemaking's change in 
the regulation. Fully vesting the authority regarding limitations and 
exceptions to the regulation's DNA-sample collection requirement in the 
Attorney General does not determine whether or to what extent 
limitations or exceptions will be adopted, and does not dictate any 
time frame for implementation of DNA-sample collection with respect to 
aliens in the affected class. The Attorney General will work with DHS, 
as he has done with other Federal agencies that have heretofore 
implemented DNA collection from persons in their custody, to ensure 
that any expansion of DNA-sample collection from such aliens will be 
effected in an orderly manner consistent with DHS's capacities.
    For example, if DNA-sample collection were implemented in full with 
respect to aliens in the category implicated by 28 CFR 28.12(b)(4), 
pursuant either to the Secretary of Homeland Security's direction under 
the current text of the regulation, or the Attorney General's direction 
following the amendment of the regulation by this rulemaking, there 
would be the same implementation costs. The Department of Justice 
assumes in analyzing these costs that any such expansion of DNA-sample 
collection would be phased in over the first three years and that DHS 
would utilize the Electronic Data Capture Project (EDCP). EDCP is a 
project designed to improve efficiencies by reducing the number of 
duplicate DNA samples collected by Federal agencies and by eliminating 
the manual collection of biographical data and inked fingerprints at 
the time of booking, by utilizing the information already 
electronically collected at the time of booking. This capability is 
estimated to reduce the time of DNA collection from approximately 15 
minutes to less than 5 minutes. To obtain the EDCP technology, 
integrate it into their booking software, and create a training program 
for their staff, DHS would incur a total one-time cost of $500,000.
    Approximately 743,000 people fell into the category implicated by 
28 CFR 28.12(b)(4) over the past 12 months, which is equivalent to 
approximately 755,000 samples, once repeated samples (due to rejection 
of initial samples) are considered. DHS submitted nearly 7,000 samples 
in FY2018. Therefore, assuming the population subject to DNA collection 
under the rule remains at this level, DHS would be expected to submit 
an additional 748,000 samples annually.

[[Page 56401]]

    Utilizing EDCP, DHS would require approximately 20,778 additional 
work hours in the first year, 41,556 hours in the second year, and 
62,333 hours in the third year to collect the additional samples. Using 
average compensation for U.S. Customs & Border Protection employees 
stationed along the southern border, the total cost to DHS with the 
EDCP software would be about $5.1 million in the first three years. If 
future implementation decisions or changes in the volume of 
apprehensions ultimately resulted in annual submission of a number of 
additional DNA samples less than or greater than 748,000, required work 
hours and resulting costs would be reduced or increased 
    The FBI would also need to provide additional DNA-sample collection 
kits, at a per-kit cost of $5.38, in sufficient numbers to collect 
samples at the volumes described above. For example, assuming a three-
year phase-in period with an additional third of the eligible 
population added in each successive year, the additional sample-
collection kit costs to the FBI would be $1,341,413 to collect 249,333 
samples in the first year, $2,682,827 to collect 498,667 samples in the 
second year, and $4,024,240 to collect 748,000 samples in the third 
year. The FBI will provide to DHS, without charge, the same services 
that it provides to other Federal agencies that collect DNA samples, 
including assistance with regard to training, DNA-sample collection 
kits, postage to return the collected samples, analysis of samples, 
inclusion in CODIS, and handling resulting matches.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, or innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

List of Subjects in 28 CFR Part 28

    Crime, Information, Law enforcement, Prisoners, Prisons, Probation 
and parole, Records.

    Accordingly, for the reasons stated in the preamble, part 28 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:


1. The authority citation for part 28 is revised to read as follows:

    Authority: 28 U.S.C. 509, 510; 34 U.S.C. 12592, 40702, 40703; 10 
U.S.C. 1565; 18 U.S.C. 3600A; Public Law 106-546, 114 Stat. 2726; 
Public Law 107-56, 115 Stat. 272; Public Law 108-405, 118 Stat. 
2260; Public Law 109-162, 119 Stat. 2960; Public Law 109-248, 120 
Stat. 587; Public Law 115-50, 131 Stat. 1001.

Sec.  28.12  [Amended]

2. Amend Sec.  28.12:
a. In the introductory text of paragraph (b) by removing ``1.1(p)'' and 
adding in its place ``1.2'';
b. At the end of paragraph (b)(2) by removing the semicolon and adding 
in its place ``; or'';
c. At the end of paragraph (b)(3) by removing ``; or'' and adding in 
its place a period; and
d. By removing paragraph (b)(4).

    Dated: October 15, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-22877 Filed 10-21-19; 8:45 am]